The choruses are warming up.
On one set of risers, the voices demanding immediate Senate consideration of Judge Merrick Garland, President Barack Obama’s Supreme Court pick. Opposite them, voices insisting against hearings, so that voters may have a say on the choice to be made by a president elected late this year.
Let’s stipulate that all the liberals want the Obama pick to hit the Senate floor soon, and all the conservatives want it ignored. Democrats do not wish to roll the dice on a Hillary Clinton victory when a president they voted for is still in office. Republicans do not want to see the Antonin Scalia vacancy filled by Obama, who reviles the constitutional fidelity that made the late justice a voice for the ages.
So who’s on firmer ground?
Has the president properly exercised his authority in offering Garland up for Senate examination? Absolutely.
Does the Constitution task the Senate with providing “advice and consent” on such nominees? It does.
Does that Article II, Section 2, language make any reference to the timing of that process? It does not. That means it is left to the parties involved, namely the president and the Senate.
Please, no suggestions that Republicans could merely exercise their right to decline the Obama pick. Have you met the current Republican Senate? Not exactly the most reliable combatants against the Obama agenda. Garland would sail through, and the people clamoring for hearings know it.
Presidents may fill vacancies promptly, or take their sweet time. The Senate may jump on those nominations, or ruminate at their leisure. We may like or dislike the pace of the process, but the notion that the Senate is constitutionally obligated to act within a certain time window is false on its face.
So who decides what is improper foot-dragging? We do. Voters may un-elect any senator whom they feel has sullied the exercise with undue laxity.
So what seems proper? It strikes me as reasonable, even civically admirable, to leave this pick to the voters. A Democrat president might yet make this pick. Or not. We get to decide. This makes sense because we will know within 20 weeks, maybe far less, who will be running to succeed Obama. It is absurd to suggest that a vacancy lasting through the election and inauguration is some epic stigma that poses a threat to democracy itself.
That said, if it were six months ago, I’d say the president should get this call. Purely objectively, a year seems like a long time to hold off on filling an empty seat. Perhaps a consensus could form: no nominations during the calendar year featuring the election.
But I hold myself to a consistency standard: Would I feel the same if a president I voted for had the chance to fill a vacancy as I would wish? Absolutely. And if Democrats invoked an election on the near horizon and suggested the voters, and not the lame-duck Republican, should get to make the call, I would admit they had a point.
Let’s all be honest with each other. Anyone attempting to shame the Senate into acting quickly on Judge Garland probably craves a justice who will undo Scalia’s legacy of constitutional textualism. Those calling for no hearings would like at least a shot at filling the vacancy with someone who would honor and continue that legacy of standing up against judicial activist whims.
If a Democrat wins in November, that is what we will get, probably multiple times, over the next four to eight years. Elections really do have consequences. But with an election right around the corner, voters should get a chance to press candidates on how they would carry out one of the presidency’s most impactful responsibilities.